Corporate criminal liability is an emerging field within the protection of human rights domain as well as international criminal law. Even though there have not been any criminal convictions on the basis of multinationals’ commission of or complicity in international crimes to date, slowly but steadily more and more cases of such nature are being brought before national courts. This trend is undoubtedly a big leap towards closing the accountability gap that currently exists with regard to companies’ direct or indirect involvement in human rights abuses around the globe. Most prominently featured is their involvement in countries with poor human rights record and in conflict-torn areas.
The latest positive development to that end is the Lafarge case, adjudicated before French courts. In September 2021, the Court of Cassation overturned the 2019 decision by the Court of Appeal of Paris to dismiss the charges of complicity in crimes against humanity brought against Lafarge in relation to the Syrian civil war. [1] Lafarge is the world’s leading producer of cement. The multinational was accused of paying armed groups, including but not limited to the Islamic State, to shield its Syrian assets from interference and keep a factory running in the early years of the conflict. In the 2019 decision, the Court of Appeal dismissed the complicity charges, stating that the payments were not directly aimed at abetting the criminal activities of such armed groups. The Court of Cassation held a different opinion on the matter, establishing that ‘one can be complicit in crimes against humanity even if one does not have the intention of being associated with the crimes committed’.[2] If courts maintain the same approach on the matter, such a statement by itself could be used in future litigation as a valuable precedent to hold accountable companies that contribute to human rights abuses and the perpetration of international crimes by indirectly aiding or financing criminal organisations and (non-) state actors. However, a final verdict in this case has not been reached.
Far from being an isolated case, Lafarge is just one among many multinational companies being accused of complicity in international crimes over activities in countries with an established record of human rights abuses. In the United States, two prominent cases lodged against Shell and Nestlé were dismissed due to a lack of jurisdiction. [3] In Europe, however, national courts have been more receptive of the idea of exercising jurisdiction on the matter, with several states initiating proceedings with positive results. In addition to the recent Lafarge decision in France, another important litigation, the Lundin case, [4] is ongoing in Sweden. Lundin Petroleum AB (currently Lundin Energy) was involved in a consortium which operated in Sudan during the time of the civil conflict there. Even though the direct perpetrators of the crimes concerned were the parties to that armed conflict, the Lundin consortium allegedly provided infrastructure to support the commission of crimes by one of the parties, therefore allegedly being complicit in the commission of those crimes. Notwithstanding the fact that the Swedish legal framework does not explicitly provide for corporate criminal liability, the Swedish prosecutors have shown creativity on the matter by bringing corporate liability for international crimes under other offences, such as forfeiture of economic benefits. [5] This showcases the increasing willingness of national authorities to hold companies accountable for their involvement in human rights abuses. Just like with the Lafarge case, it is yet to be seen if this litigation will be successful. Finally, another very important development is the current ongoing investigation in France which relates to fashion retailers suspected of concealing human rights violations and crimes against humanity in the Xinjiang region of China. This area has drawn the attention of the international community due to its ‘work camps’ which are alleged to feature forced labour, enslavement and torture.
On the international level, the legal framework of the International Criminal Court [6] does not explicitly allow for corporate liability. However, the Rome Statute can be used as an instrument to hold individuals acting on behalf of multinationals criminally liable. In 2019, a group of six NGOs filed a communication under Article 15 of the Rome Statute addressed to the ICC Prosecutor. In the communication, they alleged the liability of companies operating and headquartered in European States – all of which have ratified the Rome Statute – for aiding and abetting the commission of international crimes in Yemen. [7] This communication, specifically aimed at companies involved in the arms trade, aimed to showcase how such companies can further the commission of international crimes. Additionally, there has been an increase of academic contributions on this matter in recent years which has in turn sparked discussions about the possibility of using the Rome Statute as an instrument to hold persons acting on behalf of companies accountable, or even the opportunity to amend the Rome Statute as to allow for a more concrete legal framework in that regard. Unfortunately, such efforts are far from coming to life and only time will tell if the accountability efforts shown on the national level will ultimately transcend also to the international level.
At this point in time we are still far away from having an effective legal framework which could allow us to close the existing accountability gap, both at the national and international level. Nevertheless, these recent developments show that corporate criminal liability is gaining momentum, and that the complicity of companies in human rights abuses, and more specifically international crimes, will no longer be tolerated both by states and the international community.
This article is written in the author’s personal capacities and does not reflect the views of the institutions which they may be affiliated with.
[1] Lafarge SA (2021) ECLI:FR:CCASS:2021:CR00866.
[2] Ibid.
[3] Nestle USA, Inc. v. DOE et al. (2021) No. 19-416; KIOBEL et al. v. Royal Dutch Petroleum Co. et al. (2013) No. 10-1491.
[4] Riello V., Furtwengler L. 2021, ‘Corporate Criminal Liability for International Crimes: France and Sweden are Poised to Take Historic Steps Forward, viewed 14 October 2021 <https://www.justsecurity.org/78097/corporate-criminal-liability-for-human-rights-violations-france-and-sweden-are-poised-to-take-historic-steps-forward/>
[5] Ibid.
[6] Rome Statute of the International Criminal Court 1998 (last amended 2010).
[7] ECCHR n.d., Made in Europe, Bombed in Yemen, viewed 14 October 2021 <https://www.ecchr.eu/en/case/made-in-europe-bombed-in-yemen/>
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